Citation Nr: 1033915
Decision Date: 09/10/10 Archive Date: 09/21/10
DOCKET NO. 06-22 890 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Cheyenne,
Wyoming
THE ISSUES
1. Entitlement to an initial rating greater than 20 percent for
degenerative disc disease of the lumbar spine.
2. Entitlement to an initial compensable rating for
hypertension.
3. Entitlement to an initial compensable rating for
gastroesophageal reflux disease (GERD) with peptic ulcers.
4. Entitlement to service connection for a chronic sinus/nasal
disorder (claimed as sinusitis).
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
L. Cramp, Counsel
INTRODUCTION
The Veteran had active service from January 1982 to March 2005.
This appeal comes before the Board of Veterans' Appeals (Board)
from an August 2005 rating decision of the Department of Veterans
Affairs (VA) Regional Office (RO) in Cheyenne, Wyoming.
Because the Veteran has disagreed with the initial ratings
assigned following the grant of service connection for
hypertension, GERD, and degenerative disc disease of the lumbar
spine, the Board characterized these claims in light of the
distinction noted in Fenderson v. West, 12 Vet. App. 119, 126
(1999) (distinguishing initial rating claims from claims for
increased ratings for already service-connected disability).
The Board has recharacterized the sinusitis claim, as reflected
on the title page, to reflect more accurately the symptoms
claimed by the Veteran. While the Veteran has used the term
sinusitis, he has reported various sinus and nasal symptoms which
are not limited to a particular diagnosis. Although a layperson
may testify as to the symptoms he can observe, he generally is
not competent to provide a diagnosis that requires the
application of medical expertise to the facts presented, which
includes the claimant's description of history and
symptomatology. Clemons v. Shinseki, 23 Vet. App. 1 (Vet. App.
Feb 17, 2009).
The claims for an initial compensable rating for GERD and for
service connection for a chronic nasal/sinus disorder are
addressed in the REMAND portion of the decision below and are
REMANDED to the RO via the Appeals Management Center (AMC), in
Washington, DC. VA will notify the Veteran if further action is
required on his part.
The issues of service connection for scars of the left
shoulder, knee, back, chest, and abdomen have been raised
by the record but have not been adjudicated by the Agency
of Original Jurisdiction (AOJ). Therefore, the Board does
not have jurisdiction over these issues and they are
referred to the AOJ for appropriate action.
FINDINGS OF FACT
1. The Veteran's degenerative disc disease of the lumbar spine
is manifested by forward flexion to 96 degrees which is
functionally limited to greater than 30 degrees but not greater
than 60 degrees; there are no incapacitating episodes requiring
bed rest prescribed by a physician.
2. The Veteran's hypertension is manifested by diastolic
pressure that is predominantly less than 100, systolic pressure
that is predominantly less than 160, and a history of diastolic
pressure that is predominantly less than 100.
CONCLUSIONS OF LAW
1. The criteria for an initial rating greater than 20 percent
for degenerative disc disease of the lumbar spine have not been
met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7,
4.10, 4.40, 4.45, 4.71a, Diagnostic Codes (DC's) 5242, 5243
(2009).
2. The criteria for a initial compensable rating for
hypertension have not been met. 38 U.S.C.A. § 1155 (West 2002);
38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.104, DC 7101 (2009).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No.
106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A.
§§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp.
2009)) redefined VA's duty to assist the Veteran in the
development of a claim. VA regulations for the implementation of
the VCAA were codified as amended at 38 C.F.R. §§ 3.102,
3.156(a), 3.159, 3.326(a) (2009).
As noted above, the claims for a higher initial rating arise from
the Veteran's disagreement with the initial rating assigned after
the grant of service connection. The courts have held, and VA's
General Counsel has agreed, that where an underlying claim for
service connection has been granted and there is disagreement as
to "downstream" questions, the claim has been substantiated and
there is no need to provide additional VCAA notice or prejudice
from absent VCAA notice. Hartman v. Nicholson, 483 F.3d 1311,
1314-15 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112,
116-17 (2007); VAOPGCPREC 8-2003 (2003).
The United States Court of Appeals for Veterans Claims (Court)
has elaborated that filing a notice of disagreement begins the
appellate process, and any remaining concerns regarding evidence
necessary to establish a more favorable decision with respect to
downstream elements (such as an effective date) are appropriately
addressed under the notice provisions of 38 U.S.C.A. §§ 5104 and
7105 (West 2002). Goodwin v. Peake, 22 Vet. App. 128, 137
(2008). Where a claim has been substantiated after the enactment
of the VCAA, the appellant bears the burden of demonstrating any
prejudice from defective VCAA notice with respect to the
downstream elements. Id. There has been no allegation of such
error in this case.
The VCAA also requires VA to make reasonable efforts to help a
claimant obtain evidence necessary to substantiate his claim.
38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to
assist" contemplates that VA will help a claimant obtain records
relevant to his claim, whether or not the records are in Federal
custody, and that VA will provide a medical examination or obtain
an opinion when necessary to make a decision on the claim.
38 C.F.R. § 3.159(c)(4).
In this case, VA obtained the Veteran's service treatment records
and all of the identified post-service records. In addition, the
Veteran was afforded a VA examination in April 2005. This
examination was adequate because it was performed by a medical
professional based on a review of claims file, solicitation of
history and symptomatology from the Veteran, and a thorough
examination of the Veteran. The resulting diagnoses and
rationales were consistent with the examination and the record.
Nieves-Rodriguez v. Peake, 22 Vet. App 295 (2008). The Board
acknowledges the contention of the Veteran's representative that,
regarding the lumbar spine evaluation, the extents of pain
associated with motion are "unclear." A review of the April
2005 examination report does not support the representative's
assertions. As discussed below, after reporting all measured
ranges of motion, the examiner reported that pain was evident on
extension and right rotation at the end of motion. This clearly
indicates that no pain was evident with other types of motion and
the figures reported for extension and right rotation represent
the ends of pain-free motion. This is consistent with
examination requirements, and additional findings are not
necessary.
Analysis
Disability evaluations are determined by application of the
criteria set forth in the VA's Schedule for Rating Disabilities,
which is based on average impairment in earning capacity.
38 U.S.C.A. § 1155; 38 C.F.R. Part 4. An evaluation of the level
of disability present must also include consideration of the
functional impairment of the Veteran's ability to engage in
ordinary activities, including employment. 38 C.F.R. § 4.10.
When a question arises as to which of two ratings apply under a
particular diagnostic code, the higher evaluation is assigned if
the disability more closely approximates the criteria for the
higher rating. 38 C.F.R. § 4.7. After careful consideration of
the evidence, any reasonable doubt remaining is resolved in favor
of the Veteran. 38 C.F.R. § 4.3.
The Veteran's entire history is to be considered when making
disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath
v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to
compensation already has been established and an increase in the
disability rating is at issue, it is the present level of
disability that is or primary concern. See Francisco v. Brown, 7
Vet. App. 55, 58 (1994). In Fenderson, the Court noted an
important distinction between an appeal involving a claimant's
disagreement with the initial rating assigned at the time a
disability is service connected. Where the question for
consideration is the propriety of the initial rating assigned,
evaluation of the medical evidence since the effective date of
the grant of service connection is required. See Fenderson, 12
Vet. App. at 126.
In addition, when evaluating musculoskeletal disabilities, VA
must consider granting a higher rating in cases in which the
claimant experiences additional functional loss due to pain,
weakness, excess fatigability, or incoordination, to include with
repeated use or during flare-ups. See 38 C.F.R. §§ 4.40, 4.45;
DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). The provisions
of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in
conjunction with the diagnostic codes predicated on limitation of
motion. See Johnson v. Brown, 9 Vet. App. 7 (1996).
Back Claim
In the August 2005 rating decision, the RO granted service
connection and assigned an initial 20 percent rating for
degenerative disc disease of the lumbar spine.
The Board notes initially that service connection has been
granted and a separate rating assigned for left sciatica. The
Veteran's notice of disagreement specified the 20 percent rating
assigned for the low back. Accordingly the rating assigned for
left sciatica is not on appeal.
Disabilities of the spine are rated in accordance with the
General Rating Formula for Diseases and Injuries of the Spine
(General Rating Formula), which encompasses such disabling
symptoms as pain, ankylosis, limitation of motion, muscle spasm,
and tenderness. DC's 5235-5243 are included.
Under the General Rating Formula for Diseases and Injuries of the
Spine, a 10 percent rating is warranted where forward flexion of
the thoracolumbar spine is greater than 60 degrees but not
greater than 85 degrees; or, combined range of motion of the
thoracolumbar spine is greater than 120 degrees but not greater
than 235 degrees; or, muscle spasm, guarding, or localized
tenderness not resulting in abnormal gait or abnormal spinal
contour; or, vertebral body fracture with loss of 50 percent or
more of the height.
A 20 percent rating requires that forward flexion of the
thoracolumbar spine is greater than 30 degrees but not greater
than 60 degrees; or, the combined range of motion of the
thoracolumbar spine is not greater than 120 degrees; or, muscle
spasm or guarding severe enough to result in an abnormal gait or
abnormal spinal contour such as scoliosis, reversed lordosis, or
abnormal kyphosis.
A 40 percent rating requires that forward flexion of the
thoracolumbar spine is 30 degrees or less; or, favorable
ankylosis of the entire thoracolumbar spine.
Higher ratings require unfavorable ankylosis of either the entire
thoracolumbar spine or unfavorable ankylosis of the entire spine,
including the cervical portion. 38 C.F.R. § 4.71a, DC's 5235-
5243.
For VA compensation purposes, normal forward flexion of the
thoracolumbar spine is zero to 90 degrees, extension is zero to
30 degrees, left and right lateral flexion are zero to 30
degrees, and left and right lateral rotation are zero to 30
degrees. Note (2). See also Plate V.
Alternatively, the Veteran's degenerative disc disease may be
rated in accordance with the Formula for Rating Intervertebral
Disc Syndrome Based on Incapacitating Episodes. Under that
schedule, a 60 percent rating is available with incapacitating
episodes having a total duration of at least 6 weeks during the
past 12 months. A 40 percent rating is available with
incapacitating episodes having a total duration of at least 4
weeks but less than 6 weeks during the past 12 months. A 20
percent rating is appropriate with incapacitating episodes having
a total duration of at least 2 weeks but less than 4 weeks during
the past 12 months. An incapacitating episode is defined as a
period of acute signs and symptoms due to intervertebral disc
syndrome that requires bed rest prescribed by a physician and
treatment by a physician.
A VA examination was provided in April 2005. The examiner
reported that the Veteran has had chronic recurring low beck pain
for years, which led to a left L4-5 hemilaminactomy in 1995. He
now has chronic low back pain radiating to the left leg, to the
top of the left foot. This pain in the low back worsens if he
sits greater than an hour or stands greater then 30 minutes.
Repeated twisting and bending will increase the pain. If he
walks up three steps he has increasing pain. During the past
year the Veteran estimates missing 12 days of work because of his
back pain. Since he started his current job, he has no missed
work time.
Physical examination revealed a loss of normal lumbar lordosis.
The examiner measured 96 degrees of forward flexion, and 7
degrees of extension. Pain was evident with the extension at the
end of motion. The Veteran also had 30 degrees of right and 45
degrees of left rotation, 33 degrees of right lateral and 32
degrees of left lateral flexion. Pain was evident on extension
and right rotation at the end of motion. There were no
additional limitations to range of motion after repetitive
motion. There were no flare-ups. There were no palpable spasms.
The Veteran walked with a normal gait and station. He moved
quickly and easily and was in no distress. He arrived using no
assistive devices.
The Veteran was noted to be doing a desk job and said that he
needs to get up and move around every 35-40 minutes for about ten
minutes or so to reposition. Concerning his usual activities, he
does no lawn mowing and when he does the dishes, he needs to
stand on a rubber pad. He does no snow shoveling. He plays no
basketball, football, or softball with his children. He does no
running. He is able to walk unrestricted but he walks at a
slower pace. He limits his lifting to about 40- 45 pounds. When
he is sleeping, he needs to reposition.
Based on the examination results, the Board finds that the
requirement for a disability rating greater than 20 percent under
the General Rating Formula are not met. In particular, forward
flexion of the thoracolumbar spine is not limited to 30 degrees
or less, and there is no favorable ankylosis of the entire
thoracolumbar spine. The Board has considered the effect of the
limitations on daily activities reported by the Veteran, but
finds them consistent with the limitation of motion reported.
Moreover, based on the objective reports of pain, which did not
additionally limit motion beyond the measured ranges. As
repetitive motion did not cause additional limitation, the
overall functional limitation is accurately reflected in the
measured ranges of motion, and there is no basis for a higher
evaluation on the basis of the DeLuca factors. Regarding
alternative evaluation under the Formula for Rating
Intervertebral Disc Syndrome Based on Incapacitating Episodes,
the examiner found no documentation of bed rest prescribed by a
physician, and the Veteran has not asserted that he has such
episodes. Accordingly, a higher rating is not permitted under
that method.
While the matter of the evaluation of left sciatica is not before
the Board, it has considered whether a separate rating is
appropriate for neurologic impairment of the right lower
extremity, or other associated neurologic impairment. The
examiner reported a normal neurologic examination in April 2005.
Deep tendon reflexes of the knees and ankles were symmetrical and
normal. Great toe dorsiflexion strength was symmetrical and
normal. The Veteran maintained pinprick to dull discrimination
in the lower extremities bilaterally. There was no dermatomal
decrease in pinprick sensation. In addition, the musculature of
the lower extremities was symmetrical and normal, straight leg
raising was negative, and cranial nerve and cerebellar functions
were normal.
The Board is aware of the Veteran's contentions regarding his low
back; however, these have been considered in the discussion
above. On his VA Form 9, the Veteran expressed his concern that
all of his functional impairment has not been considered and his
back disability has affected every aspect of his life. In order
to warrant a higher rating, however, the Veteran's functional
impairment would have to more closely approximate limitation of
forward flexion of the thoracolumbar spine to 30 degrees or less,
or favorable ankylosis (complete bony fixation) of the entire
thoracolumbar spine. The Veteran's description of his associated
limitations in work activities and activities of daily life are
consistent with the range of motion reported by the April 2005
examiner. Indeed, if the measured range of motion were
considered alone, a lower rating would be warranted. The Veteran
has not explained how his measured forward flexion of 96 degrees
is actually the functional equivalent of limitation of forward
flexion to 30 degrees or less, or favorable ankylosis of the
entire thoracolumbar spine. The Board finds that there is no
support in the objective medical evidence for the Veteran's
assertions regarding his functional limitation.
Hypertension
In the August 2005 rating decision, the RO granted service
connection and assigned an initial noncompensable rating for
hypertension, pursuant to DC 7101, effective April 1, 2005.
Under DC 7101, a zero percent rating is assignable where the
criteria for at least the 10 percent level are not met. A 10
percent rating is assigned where diastolic pressure is
predominantly 100 or more, or; systolic pressure is predominantly
160 or more, or; as the minimum evaluation for an individual with
a history of diastolic pressure predominantly 100 or more who
requires continuous medication for control. A 20 percent rating
requires diastolic pressure predominantly 110 or more, or;
systolic pressure predominantly 200 or more. A 40 percent rating
requires diastolic pressure predominantly 120 or more. A 60
percent rating requires diastolic pressure predominantly 130 or
more. 38 C.F.R. § 4.104, DC 7101.
On VA examination in April 2005, it was noted that the Veteran's
high blood pressure is controlled on medication. Blood pressure
in the left arm was 120/84 and repeated 122/84. Blood pressure
in the right arm was 118/82.
Based on these findings, the Board finds that the criteria for an
initial compensable rating for the Veteran's service-connected
hypertension are not met. Diastolic pressure is not
predominantly 100 or more and systolic pressure is not
predominantly 160 or more. The Veteran is on continuous
medication for control of hypertension. Regarding a history of
diastolic pressure predominantly 100 or more, in light of the
short period between release from service and the filing of the
current claim, the Board has reviewed the service treatment
records to determine whether the Veteran has such a history.
While the blood pressure readings contained in the ten volumes of
service treatment records will not be exhaustively listed here,
the Board has found only occasional diastolic readings of 100 or
more. This certainly is not the predominant reading. An
instructive sample of readings are contained in the Veteran's
dental history records. Those include readings taken once per
year from 1990 to 2003. Significantly, none of those readings is
above 90. An adult preventive and chronic care flow sheet
contains readings in the four years leading to the Veteran's
discharge. Each of those diastolic readings is in the 70s.
The Board has considered the Veteran's assertions regarding
entitlement to a compensable rating; however, he has pointed
primarily to the medical evidence and contended that his
diastolic pressure is predominantly 100 or more. As discussed
above, there is no support for the Veteran's assertions in the
objective medical evidence of record.
When a claimant is awarded service connection and assigned an
initial disability rating, separate disability ratings may be
assigned for separate periods of time in accordance with the
facts found. Such separate disability ratings are known as
staged ratings. See Fenderson v. West, 12 Vet. App. 119, 126
(1999) (noting that staged ratings are assigned at the time an
initial disability rating is assigned). In Hart v. Mansfield,
the Court extended entitlement to staged ratings to claims for
increased disability ratings where "the factual findings show
distinct time periods where the service-connected disability
exhibits symptoms that would warrant different ratings." 21 Vet.
App. 505, 511 (2007). Here, neither disability has changed
significantly and a uniform evaluation is warranted.
Consideration of referral for an extraschedular rating requires a
three-step inquiry. See Thun v. Peake, 22 Vet. App. 111, 115
(2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir.
Jul. 17, 2009). The first question is whether the schedular
rating adequately contemplates the Veteran's disability picture.
Thun, 22 Vet. App. at 115. If the criteria reasonably describe
the claimant's disability level and symptomatology, then the
claimant's disability picture is contemplated by the rating
schedule, the assigned schedular evaluation is, therefore,
adequate, and no referral is required. If the schedular
evaluation does not contemplate the claimant's level of
disability and symptomatology and is found inadequate, then the
second inquiry is whether the claimant's exceptional disability
picture exhibits other related factors such as those provided by
the regulation as governing norms. If the Veteran's disability
picture meets the second inquiry, then the third step is to refer
the case to the Under Secretary for Benefits or the Director of
the Compensation and Pension Service to determine whether an
extraschedular rating is warranted.
Here, the rating criteria clearly contemplate the Veteran's
disability picture. They include symptomatology of the type
reported by the Veteran and by medical professionals on clinical
evaluation. Significantly, both sets of criteria include higher
ratings where symptomatology of the appropriate degree is
demonstrated.
As the preponderance of the evidence is against the Veteran's
claims, the benefit-of-the-doubt doctrine does not apply. 38
U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361,
1364, 1365 (Fed. Cir. 2001) (holding that "the benefit of the
doubt rule is inapplicable when the preponderance of the evidence
is found to be against the claimant"); Gilbert v. Derwinski, 1
Vet. App. 49 (1990).
ORDER
Entitlement to an initial rating greater than 20 percent for
degenerative disc disease of the lumbar spine is denied.
Entitlement to an initial compensable rating for hypertension is
denied.
REMAND
The VCAA and its implementing laws and regulations provide,
generally, that an examination or opinion is necessary if the
evidence of record contains competent evidence that the claimant
has a current disability, or persistent or recurrent symptoms of
disability; and establishes that the Veteran suffered an injury
or disease in service; indicates that the claimed disability or
symptoms may be associated with the established injury, or
disease in service or with another service-connected disability,
but does not contain sufficient medical evidence for the
Secretary to make a decision on the claim. See 38 C.F.R.
§ 3.159(c)(4).
With respect to the Veteran's service connection claim for a
chronic sinus/nasal disorder (claimed as sinusitis), the Board
notes that service treatment records reveal ongoing complaint of
symptoms related to the Veteran's nose and sinuses. A March 1988
report shows complaint of chronic recurrent sinus congestion,
with an assessment of chronic congestion. Nasal congestion was
noted in an October 1991 assessment. An August 1993 military
sick call records complaints including rhinorrhea. It was noted
that the Veteran had chronic nasal problems but denied a history
of recurrent fall/late summer allergies. The diagnosis was
allergic rhinitis. Those records also show a diagnosis of
sinusitis secondary to seasonal allergic rhinitis in September
1993. Allergy testing in October 1994 reveals positive skin
tests for grasses, mites, pigweed and sage. The assessment was
perennial rhinitis, primarily non-allergic, but with a seasonal
allergic component to grasses and weeds. A January 1995
assessment shows a questioned diagnosis of sinusitis. A March
1995 assessment shows a diagnosis of allergic rhinitis. An April
1999 dental patient medical history shows a report of hay fever
and year-round sinus problems. The results of an August 1999
sleep study included problem nasal congestion. An August 2003
report shows a diagnosis of sinusitis.
The threshold for finding that there "may" be a nexus between
current disability or persistent or recurrent symptoms of
disability and service is low. Locklear v. Nicholson, 20 Vet.
App. 410 (2006); McLendon v. Nicholson, 20 Vet. App. 79 (2006).
The types of evidence that "indicate" that a current disability
"may be associated" with military service include, but are not
limited to, medical evidence that suggests a nexus but is too
equivocal or lacking in specificity to support a decision on the
merits, or credible evidence of continuity of symptomatology such
as pain or other symptoms capable of lay observation. McLendon,
20 Vet. App. at 83.
The Veteran was afforded a VA examination in April 2005.
However, even though the examiner noted that he reviewed the
service records, he noted in-service diagnoses only on two
occasions, in January 1995 and in August 2003, with a diagnosis
of sinusitis. The examiner noted that the Veteran now complains
of daily yellow to white nasal drainage, and uses nasal spray,
decongestant, and antihistamine, on a daily basis. He also noted
a sinus headache on a weekly basis. The examiner noted a normal
examination of the sinuses with no acute sinusitis. Instead, the
diagnosis was chronic rhinorrhea with seasonal allergic rhinitis.
The examiner did not provide an opinion as to the etiology of
either diagnosed condition.
Thus, the evidence demonstrates that the Veteran currently is
diagnosed with sinus/nasal disorders, an allergic disorder and a
chronic nonallergic disorder, either or both of which may be
related to service.
Diseases of allergic etiology may not be disposed of routinely
for compensation purposes as constitutional or developmental
abnormalities. Service connection must be determined on the
evidence as to existence prior to enlistment and, if so existent,
a comparative study must be made of its severity at enlistment
and subsequently. Increase in the degree of disability during
service may not be disposed of routinely as natural progress nor
as due to the inherent nature of the disease. Seasonal and other
acute allergic manifestations subsiding on the absence of or
removal of the allergen are generally to be regarded as acute
diseases, healing without residuals. The determination as to
service incurrence or aggravation must be on the whole
evidentiary showing. 38 C.F.R. § 3.380 (2009).
As the Veteran has persistent symptoms of sinus/nasal disability,
as well as current diagnoses which may be related to similar
symptoms and diagnoses in service, the Board finds that an
examination is necessary.
With respect to the Veteran's initial compensable rating claim
for GERD, the Board notes that VA regulations provide that
certain coexisting diseases of the digestive system do not lend
themselves to distinct and separate disability evaluations
without violating the fundamental principle relating to
pyramiding; and, instead, a single evaluation must be assigned
under the diagnostic code which reflects the predominant
disability picture, with elevation to the next higher evaluation
where the severity of the overall disability warrants such
elevation.
The Board notes that the Veteran has a service history that
includes diagnoses of numerous digestive disorders, including
peptic ulcer disease, esophagitis, and gastritis. The grant of
service connection specifically includes gastroesophageal reflux
disease and peptic ulcers.
Thus, it would appear that other applicable codes may permit
assignment of a compensable rating. For instance, DC 7305
governing duodenal ulcers, includes a 10 percent rating where
there are mild symptoms recurring once or twice yearly. The
April 2005 examiner reported a daily epigastric burning
sensation, often times present before meals or in between meals.
However, the examiner did not include findings as to whether any
ulcers are now present. DC 7307, applicable to hypertrophic
gastritis (identified by gastroscope), includes a 10 percent
rating for a chronic condition with small nodular lesions, and
symptoms. Service records confirm the presence of gastritis by
gastroscope in 2004. The April 2005 examiner did not confirm the
presence of lesions by gastroscope currently. As the Veteran has
symptomatology that may permit a compensable rating under other
applicable diagnostic codes, if specific findings are confirmed
by testing, the Board finds that a VA examination is necessary.
The RO/AMC also should attempt to obtain the Veteran's up-to-date
VA and private treatment records.
Accordingly, the case is REMANDED for the following action:
1. Contact the Veteran and/or his service
representative and ask him to identify all VA
and non-VA clinicians who have treated him
for GERD and/or for a chronic sinus/nasal
disorder since his service separation.
Obtain all VA treatment records that have not
been obtained already. Once signed releases
are obtained from the Veteran, obtain any
private treatment records that have not been
obtained already. A copy of any response, to
include a negative reply and any records
obtained, should be included in the claims
file.
2. Then, schedule the Veteran for a VA
examination to determine the nature and
etiology of any current chronic sinus/nasal
disorder. The claims file must be made
available to the examiner for review.
Based on a review of the claims file and the
results of the Veteran's physical
examination, the examiner should identify the
appropriate diagnoses and provide an opinion
as to whether any of the current diagnoses
represent congenital conditions. If not
found to be congenital, the examiner should
state whether it is at least as likely as not
(i.e., a 50 percent or greater probability)
that any identified disorder predated active
service. For any disorder found to have
predated active service, the examiner should
state whether it is at least as likely as not
(i.e., a 50 percent or greater probability)
that such disorder worsened during service
beyond its natural progression and identify
the nature and extent of such worsening. For
any condition found not to be congenital, or
otherwise to have predated service, the
examiner should state whether it is at least
as likely as not (i.e., a 50 percent or
greater probability) that such disorder is
related to active service. A complete
rationale must be provided for any opinion(s)
expressed.
2. Schedule the Veteran for a VA examination
to determine the current degree of severity
of his service-connected GERD and peptic
ulcer disease. The claims file must be
made available to the examiner for
review. The examiner should include a
report of all current symptomatology
associated with the service-connected
disorder, and should determine specifically
whether any ulcers are present, and determine
by gastroscope whether hypertrophic gastritis
is present.
3. Thereafter, readjudicate the claims for
an initial compensable rating for GERD with
peptic ulcers and for service connection for
a chronic sinus/nasal disorder. If the
benefits sought on appeal remains denied, the
Veteran and his service representative should
be provided a supplemental statement of the
case. An appropriate period of time should
be allowed for response.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals for
Veterans Claims for additional development or other appropriate
action must be handled in an expeditious manner. See 38 U.S.C.A.
§§ 5109B, 7112 (West Supp. 2009).
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MICHAEL T. OSBORNE
Acting Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs